Choice-Of-Law Codification in Modern Europe: the Costs of Multi-Level Law-Making

507 CHOICE-OF-LAW CODIFICATION IN MODERN EUROPE: THE COSTS OF MULTI-LEVEL LAW-MAKING MATHIAS REIMANN† INTRODUCTION For U.S.-American scholars (and perhaps even legislators) who consider the codification of conflicts law and are interested in foreign models, it comes almost naturally to look to continental Europe. To be sure, in recent decades there has been a much wider, almost global, trend towards codifying choice-of-law rules.1 Yet, continental Europe remains the high citadel of codification and that is especially true for conflicts law: in the past 50 years, the region has seen more conflicts codifications than ever before, though some are more comprehensive than others.2 The result is an ever starker contrast with the United States: on this side of the Atlantic, conflicts codification is still very much the exception, in Europe it has clearly become the rule. It is tempting, therefore, to regard continental Europe as some kind of conflicts codification paradise—a world where the pertinent rules are comprehensively unified, logically coordinated, and systematically organized. Unfortunately, the reality is much more complicated. There is currently no comprehensive European code on private international law. Instead, there is a growing multitude of particular codifications and, in combination, these codifications have turned Eu- ropean conflicts law as a whole into something of a mess. This is so, mainly for two reasons. First, codification has occurred on several dis- tinct levels—national, international, and supra-national—and the co- ordination between these levels is often wanting. Second, especially at the level of the European Union, codification has proceeded in a piecemeal fashion, and the pieces do not always fit together very well. † Hessel E. Yntema Professor of Law, University of Michigan School of Law. 1. For a comprehensive study, see SYMEON C. SYMEONIDES, CODIFYING CHOICE OF LAW AROUND THE WORLD, (Oxford U. Press 2014). 2. The term “codification” can have different meanings. This essay uses it in the sense most common at least in continental Europe: a legislative act that covers a field of law in a comprehensive, systematically organized, and largely self-contained fashion. As we will see, however, European conflicts codifications differ significantly with regard to the size of the fields they cover. Some encompass all of conflicts law, others cover only choice-of-law or only jurisdiction and judgments recognition; some apply to (virtually) all of substantive private law; others, address only particular areas, such as con- tractual obligations, divorce, or succession. 508 CREIGHTON LAW REVIEW [Vol. 49 Thus, European conflicts law as a whole has become frightfully com- plex as well as partially incoherent.3 This article has three main parts. The first part presents a short history of European conflicts codification and chronicles the emergence of the three levels on which it has occurred. The second part shows how the sources on the various levels interact and explains the complexities and problems of multi-level codification. The third part considers how the main problems—excessive complexity and occa- sional inconsistency—could be remedied but concludes that, at least in the near future, prospects for effective solutions are decidedly limited. The conclusion proffers some possible lessons for conflicts lawyers in the United States. Three caveats are in order. First, the analysis is limited to choice- of-law as the core of the field; still, much of what follows is true, muta- tis mutandis, for the procedural aspects of conflicts law (i.e., jurisdiction, judgments recognition, and judicial assistance) as well.4 Second, the analysis focuses mainly on continental Europe as the cradle of codification; of course, the common law jurisdictions (the United Kingdom and Ireland) and the Scandinavian countries (except Norway) must also be considered when it comes to codification by the European Union, though, as we shall see, they have sometimes defected from the system. Third, even though the presentation and analysis will occa- sionally seem quite complicated, the picture presented here is heavily simplified for the sake of clarity and brevity; experts in European conflicts law may complain about the omission of many finer points, but outside observers should be thankful. I. A SHORT HISTORY OF EUROPEAN CONFLICTS LAW: THE EMERGENCE OF THE MULTI-LEVEL SYSTEM In order to understand the current state of conflicts codification in Europe, an American observer must, first of all, grasp its multi-level nature. In the United States, we take it for granted that choice-of-law 3. The European literature about European private international law is abun- dant, though most of it addresses particular aspects rather than the general picture. Recently, two German scholars, have published a thorough and thoughtful assessment of the situation as a whole. See Giesela Ruhl ¨ & Jan von Hein, Toward a European Code of Private International Law?, 79 Rabels Zeitschrift fur ausl¨andisches und internation- ales Privatrecht 701 (2015). Their study differs from the present essay in several re- gards. It is written from a European perspective and primarily for a European audience; it covers not only choice-of-law but procedural aspects, as well; its main goal is to explore options for reform; and it goes into much greater detail than most Ameri- can readers would want. Still, for readers with a deeper interest in the process and problems of European conflicts codification, the article provides a plethora of valuable information, as well as much food for thought. 4. For a quick overview, see R¨uhl & von Hein, supra note 3, at 708-09. 2016] CHOICE-OF-LAW CODIFICATION 509 is left almost entirely to the states. By contrast, in Europe, the subject has been codified not only by (nation) states but also in international conventions and, more recently, in the form of supra-national (i.e., Eu- ropean Union) law. A. NATIONAL LAW: FROM CIVIL CODES TO FREESTANDING STATUTES On a national level, codifying choice-of-law rules has a 200-year tradition in continental Europe. It has occurred in two major forms: originally within traditional civil codes and, more recently and in- creasingly, in freestanding conflicts statutes. Some countries have merged these approaches in one way or another. Beginning with the French Code civil of 1804,5 many of the nineteenth and earlier twentieth-century classical civil codes contained conflicts provisions in their introductory parts. At first, these rules were fairly rudimentary as in the Code civil, but when private international law as a discipline came into its own in the late nineteenth and early twentieth-centuries, the rules grew in coverage and detail.6 Germany presented a somewhat special case because it codified its choice-of-law rules not directly in the Civil Code7 (Burgerliches ¨ Gesetzbuch, BGB) of 1900, but in an Introductory Act (Einfuhrungsgesetz) ¨ to the Civil Code.8 This semi-separate form of codification foreshadowed later developments. Starting in the last third of the twentieth century, an increasing number of continental European countries undertook conflicts codification in separate statutes. These statutes were sometimes limited to choice-of-law, as in Poland (1965)9 and Austria (1978);10 but more often they also included jurisdiction, judgments, and other matters, as in Switzerland (1987)11 and Italy (1995).12 Today, more than a dozen continental European nations have freestanding conflicts codifications of one sort or another.13 Yet, some countries undertaking modern and comprehensive choice-of-law codification incorporated it as a special 5. CODE CIVIL [C. civ.] art. 3 (Fr. 1804). 6. See CODE CIVIL [C. CIV.] [CIVIL CODE] art. 3 (Fr. 1804); ALLGEMEINES BURGER-¨ LICHES GESETZBUCH [ABGB] [CIVIL CODE] § 4 (Austria 1811); Art. I:2 para. 5 BW (Neth. 1838); Codice civile art. 17-31 (It. 1865); CODIGO CIVL [CIVIL CODE] tit. IV (Port. 1867). 7. BURGERLICHES¨ GESETZBUCH [BGB] [CIVIL CODE] (Ger. 1900). 8. Reichsgestzblatt, Einfuhrungsgesetz ¨ zum Burgerlichen ¨ Gesetzbuch [Introduc- tory Act to the Civil Code], 604, art. 3-38 (Ger. Aug. 18 1896). 9. 2011 Dziennik Ustaw [Dz. U] [Journal of Laws] no. 80, item 432 (replacing 1965 Dziennik Ustaw [Dz. U] [Journal of Laws] no. 46, item 290). 10. Legge 31 maggio 1995, n. 218, G.U. June 3, 1995, n. 128 (It.) (Law No. 218 of 31 May 1995 on the Reform of the Italian System of Private International Law). 11. SCHWEIZERISCHES ZIVIL GESETZBUCH [ZGB], CODE CIVIL [CC], CODICE CIVILE [CC] [CIVIL CODE] Dec. 18, 1987, SR 291, art.1-32 (Switz.). 12. L 31 maggio 1995, n. 218, G.U. June 3, 1995, n. 128 (It.). 13. See Symeonides, supra note 1, at 23-25 (providing an overview). 510 CREIGHTON LAW REVIEW [Vol. 49 chapter into their civil codes, such as in the Netherlands14 and Russia.15 If one takes these two forms together (parts of civil codes and separate statutes), by the end of the twentieth century, the national law of virtually all continental European countries contained codified choice-of-law provisions. They range from traditional (usually unilat- eral) and rudimentary rules to modern (usually multilateral) and comprehensive regimes. Today, it is fair to say that most continental European countries have used codification to put their choice-of-law rules in order.16 B. INTERNATIONAL LAW: CONVENTIONS FROM THE HAGUE TO ROME Towards the end of the nineteenth century, European conflicts scholars and lawmakers realized the problem created by codifying choice-of-law rules on the national level: the respective legislatures often enacted significantly different rules. As a result, in different jurisdictions the same case might be decided under different substantive laws, leading to different outcomes. In order to foster greater “deci- sional harmony,” continental European countries began to strive for international unification of conflicts rules.

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